America’s criminal code is massive, criminalizing a litany of seemingly harmless and ethical actions. In an excellent 2013 article in the Harvard Journal of Law & Public Policy, Paul Larkin explores this overcriminalization through the lens of public choice theory. Public choice theory uses the assumptions and methods of economics to study the behavior of politicians, bureaucrats, voters, and other political actors. Larkin uses public choice theory to expose the perverse political incentives that have brought us overcriminalization.
One harm caused by overcriminalization is obvious. As more innocuous behaviors are criminalized, we will see more people locked in cages for no good reason. Overcriminalization causes quite a few other problems as well. As Larkin writes:
If the penal code regulates too much conduct that is beyond the common law definitions of crimes or that is not inherently blameworthy, several problems arise. It becomes a formidable task for the average person to know what the law forbids, because the moral code offers no lodestar. It is difficult for the courts to curtail law enforcement excesses, because the police almost always will have probable cause to arrest someone for something. It is challenging for the criminal process to avoid being captured and corrupted by special interest groups, because every private party will vie for economic rents by making a criminal out of a rival. If new statutes are merely copies of existing laws with different labels, they are, at best, prescriptions for inefficiency (maybe even useless), or, at worst, fraudulent. If they outlaw the same conduct but multiply the penalties, the punishments become grossly disproportionate to the harm they seek to avoid and empower prosecutors to stack charges against a defendant to coerce a guilty plea. And, for those reasons, having too many criminal laws damages the respectability of the process that enforces them.
Ultimately, overcriminalization undermines the rule of law. It makes practically everyone vulnerable to searches and violence by the police. It enables prosecutors to coerce defendants into plea deals, thus undermining the rights to due process and trial by jury. It helps create harsh sentences completely at odds with proportionality. All of this means that individual liberty is incompatible with overcriminalization.
Paul Larkin attributes overcriminalization to “a latent design defect in the political process.” Perverse incentives of our political process guide political actors to pass more and more criminal laws each year. Larkin explains that passing bills to better fund or oversee existing law enforcement is politically costly. It involves direct budget costs in the case of funding, and in the case of oversight it requires legislatures to take time to acquire knowledge about the operation of law enforcement. Larkin contrasts this with the low costs to legislators of passing new criminal laws. In terms of financial costs, “making something a crime only costs whatever it takes to print the relevant pages in the Congressional Record and the United States Code.” And in terms of costs of acquiring information, “outlawing an activity does not require a legislator to learn anything about the investigative and enforcement agencies charged with implementing the statute. In fact, the agencies will draft the bill for him.” Supporting a new criminal law also makes you far fewer political enemies than making a funding decision, Larkin argues.
Deciding where public funds will go—guns or butter, law enforcement or education, and so forth—makes friends of some agencies and their supporters, in and out of government, but it also makes enemies out of the colleagues and citizens who do not receive funds for their own projects. By contrast, making something a crime makes enemies only from “the criminal element,” and those people do not count, largely because they cannot vote.
These are just a few of the incentives that entice legislators to support new criminal laws. While legislators discuss these laws in terms of the public interest, many criminal laws are better explained in terms of politicians’ self-interest.
It’s not just politicians that have incentives to support an ever expanding scope for criminal law. Prosecutors, regulators, and law enforcement agents all play a role. Larkin describes the relationship between prosecutors and legislators in this process as follows:
Prosecutors must actually use these new statutes for a legislator to receive credit for fighting crime on an ongoing basis. Prosecutors who make that choice thereby make an ally in the halls of the legislature—an ally who can help pass more laws that benefit prosecutors. The consequence, as Professor Stuntz termed it, is a symbiotic relationship between prosecutors and members of Congress. “Legislators gain when they write statutes in ways that benefit prosecutors. Prosecutors gain from statutes that more easily allow them to induce guilty pleas.” It is a “beautiful friendship.”
This symbiotic relationship between prosecutors and legislators means that criminal law not only expands on the books, but is concretely used to put people in prison.
The regulatory state plays a similar role, in what Larkin calls “the criminal-regulatory partnership.” Regulators benefit from this partnership by being able to call respected and feared law enforcement agents to enforce their regulations. Legislators also benefit, because “Adding criminal statutes to an otherwise entirely civil regulatory scheme allows Congress to cash in on the leverage that a criminal investigation enjoys with the public and the media.”
America has the largest prison population on earth. We have a voluminous criminal law, to the point where the Congressional Research Service told Congress they could not determine with certainty how many crimes are on the books. According to Larkin, “Today, there are approximately 3,300 federal criminal statutes.”
And unless we challenge the incentive structure that political actors act within, we are likely to see criminalization expand even more.